Price v. State, 13-90-356-CR

• Decision Date: 31 October 1991
• Docket Number: No. 13-90-356-CR,13-90-356-CR
• Citation: 818 S.W.2d 883
• Parties: Ark James PRICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 883

818 S.W.2d 883

Ark James PRICE, Appellant, v. The STATE of Texas, Appellee.

No. 13-90-356-CR.

Court of Appeals of Texas,

Corpus Christi.

Oct. 31, 1991.

Rehearing Overruled Nov. 21, 1991.

George B. Mackey, Richard Alley, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., Fort Worth, Betty Marshall, Asst. Crim. Dist. Atty., Fort Worth, for appellee.

Before NYE, C.J., and SEERDEN and BISSETT ¹, JJ.

OPINION

NYE, Chief Justice.

A jury found appellant, Ark James Price, guilty of aggravated robbery and also found the habitual felony offender allegations to be true. The jury assessed as punishment seventy-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant brings six points of error. We affirm the judgment of guilt and abate the cause for a hearing on the motion for new trial.

It was after midnight on July 15, 1989, when Ancil Thorne, a Domino's Pizza deliveryman, was on his way to deliver a pizza and Cokes to 3405 East Seminary Drive in Fort Worth. He could not find the address and was on his way back when he heard someone holler. He looked into his rear-view mirror and saw a man, Frank Lemmons, waving at him. Ancil turned his car around and went to the house where Lemmons was standing. Ancil saw that a second man, appellant, was sitting next to the same house. Ancil asked Lemmons his name, and Lemmons said the name that was on the pizza box. Lemmons told Ancil that he only had a fifty-dollar bill and asked him if he had any change. Ancil got out of his car and started counting his money. Lemmons and appellant came up beside him. While Ancil was counting his money, appellant tried to go behind him, but Ancil stepped back in order to keep his eyes on them. Lemmons asked Ancil a question, and Ancil turned to answer. By the time Ancil turned back around, he felt a cold nozzle on the back of his head and heard appellant say, "Be cool, Man. We don't want to have to shoot you." Lemmons asked Ancil where the car keys were, and Ancil told him where to look. Lemmons asked Ancil to help him open the trunk. Ancil stepped forward, and appellant said, "Don't move." Ancil looked at appellant and saw that he was pointing a small, black pistol at him. Ancil told Lemmons how to open the trunk. Lemmons told Ancil that they were going to take his car and that he could pick it up later down the street. Ancil protested, and Lemmons ordered him into the trunk. Ancil refused to get in. So, appellant put the gun behind Ancil's head and told him to get in. Ancil got into the trunk, and Lemmons shut the lid. The car drove off with Ancil inside the trunk. While inside the trunk, Ancil thought that they were going to kill him. Five or ten minutes later, the car stopped at a gas station. Ancil pulled a cable inside the trunk and raised the lid two or three inches, but one of them slammed it shut. They told Ancil that they were going to let him loose around the corner. Instead, the car got on the freeway and turned onto a service road. As the car slowed down, Ancil jumped out and ran away. He heard somebody holler, "Hey." He glanced back and saw a person crouched down next to his car, aiming at him. He kept running and heard one shot and then another shot. He felt a sharp pain in his left arm, and it fell limp. He flagged down a police car and was taken to a hospital. It turned out that Ancil was shot near his left armpit. Ancil did not recover his car. Lemmons and appellant also took the pizza, Cokes, and about twenty-four dollars from Ancil.

Appellant's confession showed that he and Lemmons decided to call a Domino's Pizza and steal one of their cars. Lemmons placed an order, giving a fake address. When the deliveryman arrived, appellant pointed a gun at him and demanded the car keys (appellant thought that the gun was a .38). They drove off with the deliveryman inside the trunk. When the deliveryman got out of the trunk, Lemmons shot him.

By point two, appellant attacks the sufficiency of the evidence to support his conviction for attempted capital murder. The first paragraph of the indictment alleged attempted capital murder, and the second alleged aggravated robbery. Before reading the indictment to the jury, the State told the trial court that it was waiving the attempted capital murder allegation. The State tried appellant for aggravated robbery, and the jury found him guilty of aggravated robbery. In reviewing the sufficiency of the evidence, we must determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989); Zamora v. State, 779 S.W.2d 886, 889 (Tex.App.--Corpus Christi 1989, no pet.). The charge's application portion stated:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of July, 1989, in Tarrant County, Texas, the Defendant, Ark James Price, did then and there intentionally or knowingly, while in the course of committing theft of property, and with intent to obtain and maintain control of said property, threaten and place Ancil Thorne in fear of imminent bodily injury or death, and that the Defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm, then you will find the Defendant guilty of aggravated robbery....

Here, appellant pointed a pistol at the victim, Ancil Thorne, and demanded his car keys. Appellant and Lemmons also took the pizza, Coke, and twenty-four dollars from Ancil. Appellant and Lemmons put Ancil inside the trunk. Ancil testified that while inside the trunk, he thought they were going to kill him. Other evidence showed that the place where Ancil was sent to deliver the pizza was in Tarrant County, Texas, and that a .38 is a firearm. When viewing this evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler, 769 S.W.2d at 239; Zamora, 779 S.W.2d at 889.

By point three, appellant complains that the trial court erred in overruling his motion to suppress his confession. By point four, he complains that the trial court erred in admitting his confession into evidence. ² Appellant contends that at the time he gave his written confession, he suffered from low intelligence, organic brain damage, illiteracy, and lack of education.

The requirement that before an accused's statement may be used against him it must be shown that the statement was made freely and voluntarily is of constitutional dimension. Jackson v. Denno, 378 U.S. 368, 376-78, 84 S.Ct. 1774, 1780-81, 12 L.Ed.2d 908 (1964). Article 38.21 of the Texas Code of Criminal Procedure provides that a statement of an accused may be used in evidence against him if it appears that it was freely and voluntarily made without compulsion or persuasion. The determination of whether a confession is voluntary under the due process clause of the Fourteenth Amendment to the United States Constitution must be based upon examination of the totality of the circumstances surrounding its acquisition. Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App.1985). The issue is whether police interrogation techniques alleged to have been coercive, either physically or psychologically, were of a nature that any confession thereby obtained was unlikely to have been the product of a rational intellect and a free will. Smith v. State, 779 S.W.2d 417, 427 (Tex.Crim.App.1989).

In determining the admissibility of a confession, the fact that it was made by one whose mentality was at a lower than normal level is to be considered and viewed as a factor indicating, although not establishing, that the confession was lacking in voluntariness. Casias v. State, 452 S.W.2d 483, 488 (Tex.Crim.App.1970); Rodriguez v. State, 666 S.W.2d 305, 313 (Tex.App.--San Antonio 1984, no pet.). A confession is not inadmissible merely because the accused, who is not insane, is of less than normal intelligence. Vasquez v. State, 163 Tex.Crim. 16, 288 S.W.2d 100, 108-09 (App.1956); Rodriguez, 666 S.W.2d at 313. A person does not have to be literate before his confession may be admitted into evidence. Pete v. State, 501 S.W.2d 683, 686 (Tex.Crim.App.1973), cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); Carrillo v. State, 634 S.W.2d 21, 23 (Tex.App.--El Paso 1982, no pet.). See TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979).

Detective Boetcher arrested appellant and read him his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), warnings. ³ Appellant told Boetcher that he understood his rights. Appellant was taken before a magistrate for arraignment. After the arraignment, Boetcher took appellant to his office and gave him his Miranda warnings on a form. Boetcher told appellant that before he could talk to him, he needed to read the warnings on the form one at a time, and, if he understood each warning, to put his initials in front of each numbered warning. As appellant read each warning, Boetcher asked him if he understood it. Appellant said that he understood each warning and wrote his initials in front of each numbered warning. Appellant signed the form. Boetcher testified that appellant appeared to take his time in reading the document. He saw appellant's eyes moving across the form. After this, appellant told his version of the alleged offense to a secretary, who typed it word for word on paper. The statement was typed on two pages, and the Miranda warnings appeared at the top of each page. When the statement was completed, appellant said that he could not read or write. ⁴ So, the secretary read the statement to him. He said that he understood the statement and that it was true and correct. He signed each page at the bottom.

Boetcher said that from the time of arrest to the time he signed his confession, ap...